Mark MacY v. Dan Howard ( 2014 )

FILED
NOT FOR PUBLICATION AUG 01 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK MARION MACY, No. 13-35992
Plaintiff - Appellant, D.C. No. 1:13-cv-00255-REB
v.
MEMORANDUM*
DAN HOWARD, Master Corporal at
Idaho State Police; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
Ronald E. Bush, Magistrate Judge, Presiding**
Submitted July 22, 2014***
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Mark Marion Macy appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging constitutional violations resulting
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Macy consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c).
***
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
from a police car chase that culminated in the death of Macy’s wife. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Hamilton v. Brown, 630
F.3d 889, 892 (9th Cir. 2011) (dismissal under 28 U.S.C. § 1915A); Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28
U.S.C. § 1915(e)(2)). We affirm.
The district court properly dismissed Macy’s § 1983 claims against
defendants Howard and Lind on the basis of acts that occurred on February 7,
2011, as barred by the applicable two-year statute of limitations. See Idaho Code
Ann. § 5-219(4) (two-year statute of limitations for personal injury actions); Knox
v. Davis, 260 F.3d 1009, 1012-13 (9th Cir. 2001) (for § 1983 claims, federal courts
apply the forum state’s personal injury statute of limitations and federal law for
determining accrual; a § 1983 claim accrues when the plaintiff knows or has reason
to know of the injury that forms the basis of the action). Contrary to Macy’s
contentions, Macy is not entitled to equitable tolling or equitable estoppel. See
Wallace v. Kato, 549 U.S. 384, 394 (2007) (federal courts look to state law
provisions for tolling the limitations period); Wilhelm v. Frampton, 158 P.3d 310,
312 (Idaho 2007) (Idaho courts cannot equitably toll statute of limitations); J.R.
Simplot Co. v. Chemetics Int’l Inc., 887 P.2d 1039, 1041 (Idaho 1994) (equitable
2 13-35992
estoppel is available in Idaho only if plaintiff lacks actual or constructive
knowledge of the truth).
The district court did not abuse its discretion in denying Macy’s motion for
appointment of counsel because Macy failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and explaining “exceptional circumstances” requirement).
We do not consider issues not specifically and distinctly raised in the
opening brief, including Macy’s other dismissed claims. See Padgett v. Wright,
587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
3 13-35992